Monday, May 19, 2008

Report by the Royal Commission of Inquiry into the Lingam video clip. — Picture by Choo Choy May of The Malaysian Insider

KUALA LUMPUR, May 18 — Datuk V.K. Lingam, Tun Ahmad Fairuz Abdul Halim, Tan Sri Vincent Tan, Tun Eusoff Chin and others seriously undermined the independence and the integrity of the judiciary by their actions of fixing the appointment and promotion of judges.

This was the finding of the Royal Commission on the Lingam video clip. This is what commission members concluded about:

Datuk V.K. Lingam

The key question in the hearing was whether Lingam was the Indian man captured in the video clip speaking on the telephone to presumably the former Chief Justice Tun Ahmad Fairuz.

When confronted with the clip, Lingam told the commission that "it looks like and the voice sounds like me." Tan Sri Haidar Mohamed Noor and other members of the commission were not impressed with this opaque answer, noting that there were direct accounts by witnesses that the man in the video clip was the lawyer.

"It is our considered opinion that Datuk V.K. Lingam had virtually emasculated himself on the issue of his credibility by admitting to his identity in the photographs but refusing to admit his identity in the video clip...Datuk V.K. Lingam took an oath before us to tell the truth, the whole truth and nothing but the truth. In refusing to accept that he was the person in the video clip we hold that his credibility was worthless."

They said that at no point during the proceedings did Lingam offer any evidence to show that he was not the person in the clip, offering only bare denials. In fact at the later stage of his testimony, he admitted that he was the one in the video clip but that the statements by him were made in the privacy of his house and that he was drunk and was bullshitting and bragging.

They also gave little weight to opinions expressed by his overseas experts on the authenticity of the clip, noting that one of the experts offered her advice without even seeing the video clip.

The commission noted: "Question that begs to be answered is why if Lingam placed such store in his experts, he did not ask them to take live tests of the person featured in the video clip so as to prove that the Indian man was not him? He provided overseas experts to condemn the Malaysian expert’s qualifications, methodology and conclusions but he had nothing in the other end of the scales!"

Tun Ahmad Fairuz Abdul Halim

The commission drew adverse inference from the former chief justice's behavior after the video clip implicating him became public knowledge. Fairuz denied that he was the person on the other end of the line to Lingam in letters to the prime minister, deputy minister and the minister in the Prime Minister’s Department on Sept 21, 2007.

The commission said that the letters were bare denials and volunteered no information as to why his name should be mentioned in the video clip. "In a situation of such national gravity it is usual for a public officer to invite a full scale public enquiry to clear his name and in certain cases the officer concerned would even offer to suspend himself from further duties whilst his name was being cleared.

"That did not happen here. Whilst it could well have been a Freudian slip we also think that it is not irrelevant that when he was asked by counsel why he described the conversation as a monologue, he said that his voice could not be heard at the other end of the line."

The commission also noted that after the video clip was made public, Fairuz retreated into silence and refused to respond to call from the media. “Tun Ahmad Fairuz could have publicly denied that he was the person at the end of the line and informed the nation that pending a public enquiry into the matter, he was voluntarily suspending himself from further duties. That step would have allayed public confidence in the system."

The commission also noted that judges have been given powers to punish any contempt or conduct by lawyers which scandalises the judiciary. Fairuz explained to the commission that did not exercise the court’s power because he did not want contaminate himself.

"We cannot accept this as a valid reason. He did not himself have to issue Datuk V.K. Lingam a letter to show cause why he should not be held liable for contempt. He could have directed any other judge to do it. At the very least a formal letter could have been issued to Datuk V.K. Lingam to explain," concluded the commission.

Datuk Seri Tengku Adnan Tengku Mansor

The commission noted that Tengku Adnan’s name was mentioned 11 times in the video clip and every time it was in the context of what the former deputy minister would or could do to push Fairuz up the judicial ladder.

When the passages in which his name was mentioned was read out to him during the hearing, he denied the truth of the content and said that he never had a conversation with Lingam about these matters.

Later he suggested that Lingam was drunk when captured on the video clip. That was why he kept bringing up Tengku Adnan’s name in the conversation during the telephone conversation.

"This explanation is too facile to be accepted. The Datuk V.K. Lingam we saw on the video clip was certainly not drunk…So why give such an explanation which was no explanation at all? Again, it was one man’s word against another and in all the circumstances of the case we regret to say that it is our opinion that Tengku Adnan Tengku Mansor was too economical with the truth to be believed."

The commission said it was puzzled why Tengku Adnan did not take any action against Lingam if the statements made by the latter were untrue. "Criminal offences by way of leaking Official Secrets were being alleged but Tengku Adnan Tengku Mansor seems to have been quite unfazed," the commission noted.

Tan Sri Vincent Tan

The commission was left incredulous by the businessman’s testimony during the hearing, saying that his answers were a faithful echo of Lingam’s. For example, when he was asked if the Indian man in the video clip was his close friend, Tan remarked: "It looks like him, it sounds like him but I cannot be 100 per cent sure."

The commission noted that the congruence of his answer with that of Lingam’s was too exact not to draw adverse comment. "Tan Sri Vincent Tan is talking about a man he has known intimately for over 20 years and he still refuses to give mouth to reality before his very eyes.

"A little later, he gives the reason, 'I cannot be sure 100 per cent because with modern technology, I don’t know what is the motive behind this.' In other words he is suggesting that the video clip may have been tampered with. All this is such a faithful echo of Datuk V.K. Lingam’s own testimony that it is very hard not to make an inference that there has been some confabulation here between them."

In their report, the commission said it was clear from Tan’s testimony that he, Lingam, Tengku Adnan and former prime minister Tun Dr Mahathir Mohamad are long term friends and business associates "whose lives are inextricably linked both personally and in the tentacles of Tan Sri Vincent Tan’s business empire and various business projects which require the PM’s political backing."

In his testimony, Tan denied that he had ever discussed the appointment of judges, especially the elevation of Fairuz with Dr Mahathir.

"When it was roundly put to him that PM did admit that he could have taken the views of Tan Sri Vincent Tan into account in the selection of judges, Tan Sri Vincent Tan’s answer was that he could not remember this but went on to say (notwithstanding he had just said that he could not remember) that he had definitely not discussed about judges," said the commission.

Members of the commission said that documents produced before them showed that Tan was involved in a string of high profile commercial cases. And in all the cases, Lingam was his lawyer.

"It is hard to believe that Tan Sri Vincent Tan would not have taken a very keen interest in the identity of the judges who were trying the cases," said the commission, adding that Tan tried his best to distance himself from Lingam.

"But the background of joint holidays together, and the fact that they even communicated with each other by intercom shows a closeness between them which cannot be discounted and must give rise to an adverse inference on Tan Sri Vincent Tan’s credibility," said the commission.

Tun Eusoff Chin

The commission said that the credibility of the former chief justice was in tatters after he gave evidence regarding his relationship with Lingam. In his sworn testimony, Eusoff said that there was nothing special about his ties with the lawyer.

This issue was important because in the video clip, Lingam seems to suggest that because of his close relationship with Eusoff, he was able to get his own way in a number of matters.

The commission noted that evidence showed that Eusoff and his family spent almost the entire holiday in New Zealand in 1994 with Lingam. At the hearing, the former CJ said that he bumped into Lingam and his family at Changi Airport but admitted that they were on the same flight to Auckland, went to the zoo and bird park together, went on a fishing trip together and took a few internal flights in New Zealand together.

Eusoff put his travel arrangements and itinerary down to coincidences. “Given the amazing number of alleged coincidences, which can be extracted from the whole trip from Singapore to New Zealand and back, we need no more than mere common sense to detect the incredulity of that proposition," the commission ruled.

In their report, the commissioners also drew attention to the testimony of Thirnama Karasu, Lingam’s brother. Among other things, this witness said that he had driven Lingam to Eusoff’s house on several occasions in 1995 and 1996. On one occasion, he delivered a briefcase and a brown envelope on behalf of his brother to the CJ.

Eusoff and Lingam denied all these allegations but the commission noted that Karasu was subjected to intense cross-examination by counsel for Eusoff, Lingam and Tun Ahmad Fairuz but was unshaken. They also alleged that he was suffering from a mental disorder and was motivated by vengeance and greed.

"When the evidence of Karasu is examined against the rebuttals and denials relating to the events highlighted, we are of the view that his version of the events is more probable than that of his detractors," said the commission.

In the final analysis, the commission noted that the effect of all the testimonies showed that not only was Eusoff and Lingam extremely close “but there was a strong prima facie case made out that their proximity was such that the relationship far from being normal was quite inappropriate."

Tun Dr Mahathir Mohamad

The commission noted that Dr Mahathir did not follow the constitutional process of consulting the then Chief Justice Tun Dzaiddin Abdullah in the appointment and promotion of judges. For example, when the then PM rejected Dzaiddin’s choice of Tan Sri Malek Ahmad to fill in the vacancy as the Chief Judge of Malaya, he did not give any reasons.

Instead, he directed Dzaiddin to choose between Tun Ahmad Fairuz and Tan Sri Mohtar Abdullah as the next CJM. The commission noted that they was evidence that Lingam and his collaborators sabotaged Malek’s candidacy by influencing Mahathir. In the video clip, Lingam told Fairuz that Malek was considered anti-Mahathir.

“Tan Sri Malek Ahmad was a victim of character assassination by third parties who had their own axe to grind...This would not have happened if the PM had consulted Tun Dzaiddin as to why Tan Sri Malek Ahmad was considered to be unsuitable for appointment to the post of CJM. Nor were there reasons given why the PM considered Tun Ahmad Fairuz or Tan Sri Mohtar Abdullah better candidates. PM’s letter was nothing short of a 'Hobson’s Choice' that one of the two should be chosen because they were PM’s favoured candidates."

The commission ruled that an exclusive right in the executive to appoint judges without consultation is inimical to the doctrine of separation of powers and destructive of judicial independence.

Worse was to follow when Dzaiddin proposed five individuals as High Court judges in a letter to the PM in October 2001. This time the Chief Secretary to the Government picked the names of five names of serving Judicial Commissioners for Tun Dzaiddin to choose two out of the five names.

No reasons were given to Dzaiddin why his choices were rejected.

“The PM cannot remember the reasons. His KSN (chief secretary) does not know the reasons. But there was somebody else who claimed to know the reasons. That somebody else is Datuk V.K. Lingam and he said that he achieved this with the participation of Tan Sri Vincent Tan and Tengku Adnan Tengku Mansor when all three of them went to see the PM with this objective in mind," noted the commission.

In the video clip, Lingam discussed Dzaiddin’s letter to the PM in October 2001 and told Fairuz that moves were underway to block the appointment of some of the names nominated by the then CJ.

The commission noted that the Constitution makes clear that the PM has to consult the CJ on appointments to the Bench. “These were serious defaults in the constitutional process, because the mandatory requirement of consultation had not been compiled with by persons who had taken an oath to uphold the Constitution. This kind of misbehavior is so unprecedented that were it not for the release of the video clip it may never have come to light," it added.